Eye on OIRA: King Coal

February 26, 2010

Thirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creekgave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless.

Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia’s School of Mines when the dam broke, told the West Virginia Gazette: “The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.” Spadaro added, “I went through stacks and stacks of documents that went back into the ‘50s, and I think that, if somewhere along the way, there had been somebody within government willing to say, ‘Something really has to happen here,’ then those people would be alive and their families would be whole.”

When EPA Administrator Lisa Jackson took office in the first wave of Obama appointments, she decided to become that official. Correctly identifying the problem of negligent disposal of 140 million tons of coal ash, a type of mining waste even more toxic than the slurry that assaulted the West Virginians, as a first-order environmental justice issue—people living within a mile of a coal ash dump site are 30 percent more likely to be poor and minority than the mainstream population-- Jackson accelerated a 30-year effort to cope with the problem by EPA career staff. We think she produced a proposed rule that would designate the ash a hazardous waste if it is dumped in pits and exempting it if it is recycled safely by, for example, incorporating it into the concrete used to build roads. We can’t be sure, though, because before the rule was even published in the Federal Register for comment, it vanished into the bowels of the Office of Information and Regulatory Affairs at OMB, the traditional killing ground for such efforts. We have no idea when it might emerge or what it will say when it does.

As we have reported before in this space, OIRA has held 33 meetings with outside stakeholders on the rule, 28 of which were repetitive audiences with industry stakeholders, in essence duplicating the rulemaking process Jackson wanted to start. But OIRA’s vetting of the rule is both hostile and secretive, boding ill for the hope that the good people of Buffalo Creek did not suffer such awe-inspiring destruction in vain. Under Executive Order 12,866 governing the regulatory process (see page 51742, which gives OIRA 90 days, a period that may be extended only once by no more than 30 calendar days), OIRA ran out of time to mangle the rule 14 days ago. But OIRA has asserted that its SWAT team of economists can take as long as they like chewing over the alternatives presented by the coal industry and its allies.

As day turns to night and night turns to day, we can be uncomfortably confident that these dumpsites will wreak havoc again and again. In December 2007, a huge coal ash impoundment run by TVA burst onto the town of Kingston, Tennessee, spilling 1.1 billion gallons of sludge across 300 acres of neighboring land to a depth of six feet. Cleanup will cost $1.2 billion. Mercifully, no one was killed. Engineering studies of similar facilities conducted by EPA in the wake of that fiasco found that:

83 percent of the structures are aboveground and therefore require a network of dams or walls to keep coal ash wastes contained;

40 percent of the aboveground impoundment structures are 25 feet high or taller;

14 percent of all impoundment structures have a surface area of 100 acres or greater;

22 percent have a storage capacity of 326 million gallons or greater; and

56 percent of the structures for which ratings are available have a Hazard Potential Rating of “High” or “Significant” (meaning that a structure failure would likely result in loss of life or severe economic damage).

Apart from the risk of catastrophic failure, a report issued this week by Earthjustice and the Environmental Integrity Project documents the widespread pollution of drinking water and destruction of natural resource produced by such sites.

I’ve been an environmentalist for long enough to know that economic downturns are not the best time to launch new initiatives. But at some point, problems have grown so old, and the threats they pose to people are so great, that the government’s failure to cope with them is immoral, not just knuckle-headed.

I was talking to a friend of mine who works on Capitol Hill the other day, and he offered the conventional wisdom on Jackson’s initiative: “If I had been advising her, I would have told her to steer clear of coal. Doesn’t she know that the President and his chief of staff are from Illinois [a coal-producing state]?” I take his point, of course. According to the Center for Responsive Politics, electric utilities awarded members of Congress $132.8 million during election cycles from 1990-2010. Senator Barack Obama was the fourth highest recipient of such largesse, receiving $903,000 (the top two recipients, Joe Barton (R-TX), ranking member of the House Energy & Commerce Committee, and John Dingell (D-MI), the “dean” of the House, received $1.3 and $1.2 million, respectively).

In any event, my friend’s cynical but undoubtedly accurate calculation is just the kind of thing that has ignited a firestorm of fury at Washington and threatens to upend Democratic control of Congress in the mid-term elections even though Republican rule on issues like coal ash is likely to be even worse. Rather than assuming that the people in coal mining states want their jobs regardless of the costs to their health, we hope Lisa Jackson both sticks to her guns and prevails. To paraphrase mining engineer Spadaro, something has to happen here.